Memeorandum

January 30, 2017

I Smell Fake News

Acting Attorney General Sally Yates, an Obama holdover, thrills her future employers by refusing to put the weight of the DoJ behind Trump's travel ban. Even the Times admits this gesture is somewhat symbolic since she is on her way out and Jeff Sessions is on his way in, but they include this odd detail:

Mr. Trump has the authority to fire Ms. Yates, but as the top Senate-confirmed official at the Justice Department, she is the only one authorized to sign foreign surveillance warrants, an essential function at the department.

Say what? I am not an authority on departmental succession but I have seen the trailers for "Designated Survivor" and I can't believe there is no Plan B if, God forbid, Ms. Yates is hit by a car or taken ill in the next few days.

(g) “Attorney General” means the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security under section 507A of title 28.

Just to introduce some complications, here are the first few paragraphs:

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—

(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or...

So just to stop there - it seems that so far, the Acting AG must come from the ranks of either the confirmed deputy or another officer high enough in rank to have required Senate confirmation. It is possible that during the Obama/Trump transition the top people appointed by Obama and confirmed by the Senate have all left except Ms. Yates and there are no remaining senior Justice officials eligible under this clause. Lacking access to the DoJ roster, I don't know that to be true, but the Times story points that way.

But there are more provisions under which the President can make an appointment. Here are the next bits:

(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—

(A)

during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

(B)

the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.

I think that means that anyone who has been with the DoJ at least three months with at least a GS-15 pay grade can take over any top spot on any acting basis. I could easily be wrong (Kiefer Sutherland skimmed over that point), and again, maybe all such people have moved on to their K-Street lobbying gigs. But that passage in the Times strikes me as a "too good to check" progressive fantasy rather than something the Times drilled down on. Then again, I would think that...

As I said, over to the lawyers! Aided by DoJ payroll and roster savants wherever they may be.

UPDATE: I guess we will find out - Trump has fired Yates and the new Acting AG is Dana Boente, former US Attorney for the Eastern District of Virginia. In that role he was subject to Senate confirmation and should qualify under paragraph (2). The bench may have been deeper than the Times realized.

MORE: A Deplorable commenter noticed this Obama Executive Order, signed a week before he left. Quite likely the top appointees were heading for the exits, so it formalized a chain of succession for the Attorney General. Key takeaway - down the list a bit are some US Attorneys:

(a) United States Attorney for the District of Columbia;

(b) United States Attorney for the Northern District of Illinois; and

(c) United States Attorney for the Central District of California.

Next is a clause allowing the President to make any alternative legal appointment. Presumably, if one US Attorney is eligible another ought to be as well. Hence, Boente.

Administrations of both parties have interpreted surveillance laws as requiring foreign surveillance warrants be signed only by Senate-confirmed Justice Department officials. Ms. Yates was named as acting attorney general to allow her to continue signing those warrants. Mr. Boente was Senate confirmed as United States attorney and, though the situation is unprecedented, the White House said he was authorized to sign the warrants.

Well, it is not just the White House saying so. Even hack legal wanna-bes like me can see this logical thread, so I am sure the high-priced talent at the Times can do the same.

Now, we are all wondering what the Times does with their first, pre-firing story, which included this bit of speculative fiction:

Mr. Trump has the authority to fire Ms. Yates, but as the top Senate-confirmed official at the Justice Department, she is the only one authorized to sign foreign surveillance warrants, an essential function at the department.

Not a lot of caveats there, yet the Times no longer stands by it. Correction, with embarrassing editor's note, or midnight revision? Time will tell!

APPARENT RESOLUTION: It never printed so it never happened. This was a fast-moving story so the original article never made the print edition, and has now been disappeared. The original link to "Acting Attorney General Orders..." now re-directs to the current version, "Trump Fires...". And the original problematic paragraph disappears.

To Be Fair, that paragraph appeared with no sourcing at all, which may have been a waving red flag even within the Times newsroom. Still, folks were citing that bit of misinformation yesterday. Breaking news remains an ongoing challenge in the Twitter/Trump era.

KevlarKid -- lol, that has to be a joke. SeanSpicer is on track to out do BaghdadBob -- and this is week 1. Completele, total lies, every day. not even controversial. just straight out lies. continuously. unprecedented in either republican or democratic administration.

I guess character matters.

I use to think Republicans thought that was important, but I guess not. Serial liar, adulterer, cheater, who de-frauds the gullible (c.f. Trump U) -- now President of the U.S.
good job guys.

Oh, but it was gloriously poetic while it lasted, was it not? The working gal V's the Dictator. The small town lady with an education and a dream V's the most powerful asshole on earth.

I love it. Yates was briefly the re-incarnation of Oskar Shindler. Innocent children were waiting to be sent to their deaths and Sally Yates stepped forward and said "Not on my watch".

There's beauty in that. And the fact cheto dust fired her so quickly and brutally turns her into an instant Martyr. Just like Jesus(who also didn't want to send children to their deaths-or held in warzones).

Mustang Sally has to wait for that level of achievement. One has to experience finding "a public hair" in their jello salad as I recall...fuels the outrage on her behalf by all the angels that will be trying to land on her shiny new "victim" pin.

"Trump fired a competent, compassionate woman from her job because she wanted to protect human beings?"

Yer kidding right?

That alpha hotel is cashing in on her 15 seconds of fame as previously described. Or perhaps positioning herself for a carpetbagging Senate bid in New York? (Would the vacuous Princess Caroline chance being soiled by a stint in this political climate.)

No, Ashley Judd's too on the nose for Sally Yates. I'm thinking maybe Kate Blanchet. And we'll call it "Sally". Just "Sally". Sally,she's like Sully only she's a girl and she's a lawyer. But like Sully,Sally is saving the lives of people she doesn't know.

And we'll spend the first hour of the movie following the detainees from whence they came....get an insight in their story before Sally makes her first appearance.

One more reason to end the filibuster, an unconstitutional super-majority requirement.

I don't think it's unconstitutional per se; the founders left it up to the Senate to decide how to deliberate over things. If the founders saw McCain and Schumer they'd think the country was made up of unserious idiots.

BINGO!
Sally Yates found out she had been fired via “a hand-delivered letter from White House’s office of personnel”: Wall Street Journal
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"When you have somehting important to say, type it up and send it by courier."